By Carlos Andres López
Las Cruces Sun-News
LAS CRUCES — The New Mexico Court of Appeals upheld convictions for two Las Cruces brothers who were found guilty in 2012 of kidnapping and assaulting a 17-year-old male and his mother’s boyfriend two years earlier.
Carlos Herrera, then 21, and his brother Daniel Herrera, then 19, were arrested on Sept. 23, 2010, after they and a third accomplice allegedly held the two victims against their will at knife and gunpoint.
According to documents from the appeals court, the victim had gone to the brothers’ apartment in the 2900 block of Los Amigos Court to record music. There, Carlos Herrera confronted the victims and accused them of stealing his cocaine.
Armed with a kitchen knife, Daniel Herrera threatened the victims and held the knife at the 17-year-old’s throat, the documents state. Yelling and forcing the apartment door shut, Carlos Herrera told the victims they could not leave until the cocaine was found.
A third man, only identified as “Zack” in the documents, then arrived at the apartment and hit one of the victims in the left eye with a pellet gun.
The men then ordered the victims to turn out their pockets and strip down to their underwear. The 17-year-old victim later testified at trial that Daniel Herrera held the knife to his throat while Carlos Herrera repeatedly punched his mother’s boyfriend in the face, causing him to lose consciousness.
The victims were told to leave the apartment when the man regained consciousness, according to the court documents, and they reported the incident soon after.
The following month, the brothers were each indicted on two counts of kidnapping and two counts of aggravated assault. They were also indicted on one count each of conspiracy to commit kidnapping, armed robbery and aggravated battery. Carlos Herrera also was charged with one count of battery.
The brothers, who were tried at the same time, went to trial on Sept. 10, 2012, in 3rd Judicial District Court in Las Cruces before Judge Douglas Driggers. Following a two-day trial, jurors convicted the brothers on all charges — except aggravated battery and armed robbery.
Carlos Herrera was sentenced to 12 years in prison, according to a spokeswoman from the state Department of Corrections. Daniel Herrera was sentenced to five years in prison.
The brothers’ attorneys, Mariano Torrez and Bennett Baur, appealed the convictions in June 2013, according to online court records.
In their appeal, the brothers argued that the 3rd Judicial District Court “erred” in denying their request for a jury instruction on kidnapping. They also argued their convictions for aggravated assault and kidnapping violate “their right to be free from double jeopardy,” and that there was insufficient to support their convictions for kidnapping, aggravated assault and conspiracy.
In addressing the jury instruction argument, the appeals court stated “the district court heard argument from both parties on the requested instruction and took a recess to examine it.”
The appeals court concluded that while the brothers’ argument was “sufficiently preserved in district court for appellate review,” they failed to ensure their requested jury instruction was included in the proper record. The requested instruction was not read into the trial record, according to the documents.
“Because Defendants failed to include their requested jury instruction on kidnapping in the record proper, we decline to address their arguments on that issue,” the appeals court’s decision reads.
The appeals court jointly addressed the brothers’ second and third arguments.
The brothers argued there was insufficient evidence to support the kidnapping and aggravated assault convictions, according to the court documents. They contended “there is no evidence of the force required for kidnapping beyond that which forms the basis for aggravated assault” and that “there is insufficient evidence of the use of a deadly weapon required for aggravated assault beyond that which forms the basis for kidnapping.”
The brothers also argued that the actions underlying the kidnapping and aggravated assault convictions was “unitary (because) the same continuous struggle gave rise to the aggravated assault and kidnapping convictions,” according to the documents.
Therefore, the brothers said, “their convictions violate their right to be free of double jeopardy,” the documents state.
The appeals court, however, disagreed with the brothers’ arguments on double jeopardy and insufficient evidence.
“We conclude that there was sufficient evidence to support Defendant’s convictions for kidnapping, aggravated assault, and conspiracy to commit kidnapping, and that none of the convictions violates the prohibition against double jeopardy,” the appeals court’s decision reads. “We affirm all of Defendant’s convictions.”
Carlos Herrera is expected to be released in February 2023, and Daniel Herrera is expected to be released next June, according to the state Department of Corrections.